Tom, a salesperson who's been with your company for less than a year, requests four weeks leave for cardiac surgery. After returning to work for several weeks, Tom requests leave again for another course of treatment. Your company is small; you have just 15 employees, with only two in sales. Is it OK to fire Tom and find someone else to do the job instead? Maybe. The correct answer depends on a complex interaction between various laws on both the federal and state levels.
Many small-business owners have less than 50 employees, and therefore are not subject to the federal Family Medical Leave Act. Nevertheless, there may be other laws besides the FMLA to be considered, such as the Americans with Disabilities Act, before deciding to grant or deny requests for medical leave. To better understand the nuts and bolts of federal law, employers must break down the demands that arise from the intersection of the FMLA and the ADA, since both require a covered employee to be granted medical leave in certain circumstances.
Who must comply?
Employers must take care because, depending on their size, some will need to comply with simultaneous demands from the ADA and the FMLA. The FMLA covers employers with 50 or more employees, while the ADA applies to employers with 15 or more employees. Thus, even if a small business is exempt from the FMLA, medical-leave requests may still be covered by the ADA.
When is leave required?
Under the FMLA, medical leave is permitted for the employee's own serious medical condition or that of their spouse, child or parent. However, the total time requested is limited to 12 work weeks per year. The request may be continuous, or the eligible employee may take leave intermittently or on a part-time basis until the equivalent of 12 work weeks has been used up.
In contrast, an employee is covered by the ADA for any disability that prevents the employee from participating in any major life activities. An impaired employee is not limited to the 12 weeks permitted under the FMLA, but can take as much time as necessary, if the leave requested is a reasonable accommodation for an employee's disability without imposing an undue hardship on the employer's business. Even if your business operations would be burdened by the altered work schedule, you cannot simply fire the employee. You must first see if you can reassign the employee to other vacant positions in your company.
Employers must keep in mind that a serious medical condition does not necessarily mean that a person is disabled, and vice versa. Some FMLA serious health conditions may be ADA disabilities, such as most cancers and serious strokes. However, other FMLA conditions may not qualify as disabilities, such as pregnancy or hernias. Therefore, an employee's condition must be looked at from both perspectives to determine whether the FMLA, ADA or both apply.
Which act to apply and when?
When both the ADA and the FMLA apply, the employer should determine which statutory provision provides the greater rights to the employee and apply those principles to his initial 12 weeks of medical leave. Any additional time beyond the FMLA's 12-week grant must be controlled by the ADA.
If an employee requests time off for less than 12 weeks, you should treat this as a request for both FMLA leave and ADA reasonable accommodation, unless the employee specifically invokes the FMLA. You should honor any FMLA requests and make no further inquiries that relate to ADA coverage that might give rise to a claim of discrimination against the disabled.
How to reconcile FMLA requirements with ADA restrictions?
Employers are permitted to ask for certification that an employee has a serious health condition under the FMLA before granting any form of medical leave despite the ADA restrictions against disability-related questions. So long as all questions relate to information specified in the FMLA certification form (PDF), an employer is entitled to ask why an employee, who otherwise should be at work, is requesting time off. If you keep all FMLA inquiries strictly about job-specific issues, then such questions are consistent with the “business necessity” exception under the ADA.
Employers should keep confidential medical information separate from the usual personnel files. Employers may not give supervisors and managers unlimited access to the medical files; employers may only give supervisors and managers information concerning work restrictions and accommodations.
Because each law and its requirements can be very complex, and most state laws impose additional requirements, you should consult with an employment law attorney when a tough situation comes up. NFIB members can take advantage of the Legal Foundation Employment Law Hotline by calling (800) NFIB-NOW (634-2669).